Taylor v Clark

Case

[2023] WASC 365


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   TAYLOR -v- CLARK [2023] WASC 365

CORAM:   HOWARD J

HEARD:   11 SEPTEMBER 2023

DELIVERED          :   27 SEPTEMBER 2023

FILE NO/S:   SJA 1025 of 2023

BETWEEN:   BENJAMIN TAYLOR

Appellant

AND

TOM ROBERT CLARK

Respondent

ON APPEAL FROM:

For File No:   SJA 1025 of 2023

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE M HOLGATE

File Number            :   KA 566 of 2022


Catchwords:

Criminal Law - Single Judge Appeal - Application for leave to appeal against acquittal - Statutory Interpretation - Whether the prescription of a 'Gel Blaster' as a 'Prohibited Weapon' under the Weapons Regulations 1999 is invalid because it is outside the scope and purpose of the Weapons Act 1999 - Appeal allowed - Conviction recorded

Legislation:

Criminal Appeals Act 2004 (WA)
Customs (Prohibited Imports) Regulations 1956 (WA)
Interpretation Act 1984 (WA)
Weapons Act 1999 (WA)
Weapons Regulations 1999 (WA)

Result:

Application allowed

Category:    B

Representation:

Counsel:

Appellant : J M Misso
Respondent : A J Greinke

Solicitors:

Appellant : State Solicitor's Office
Respondent : Ross Williamson

Case(s) referred to in decision(s):

Australian Maritime Officers' Union v Assistant Minister for Immigration and Border Protection (2015) 230 FCR 523

Electricity Generation & Retail Corporation t/as Synergy v EIT Kwinana Partner Pty Ltd [2022] WASCA 3

Footscray Corporation v Maize Products Pty Ltd (1943) 67 CLR 301

Laufer v Gear [2021] WASCA 2

Lowe Pty Ltd v Belgravia Nominees Pty Ltd [2020] WASCA 180

Mohammadi v Bethune [2018] WASCA 98

Morton v Union SS Co of New Zealand Ltd (1951) 83 CLR 402

OneSteel Manufacturing Pty Ltd v Bluescope Steel (AIS) Pty Ltd (2013) 85 NSWLR 1

Samuels v State of Western Australia (2005) 30 WAR 473

Shanahan v Scott (1957) 96 CLR 245

SZTAL v Minister for Immigration [2017] HCA 34; (2017) 91 ALJR 936

Waite v Hennah [2021] WASCA 69; (2021) 96 MVR 58

HOWARD J:

The charge and acquittal below

  1. Following a half day trial on 24 February 2023, the respondent was acquitted of an offence against s 6(1)(b) of the Weapons Act 1999 (WA) of possessing a prohibited weapon not being a person exempted under ss 6(2) and (3) or s 10 of the Weapons Act.

  2. The provision in s 6(1)(b) stated:

    Except as provided in subsections (2) and (3) and section 10, a person who-

    (b)carries or possesses a prohibited weapon;

    or attempts to do any of those things, commits an offence.

    Penalty: imprisonment for 3 years and a fine of $36,000.

  3. It was not challenged below, and was found by the learned Magistrate, that the respondent was in possession of two 'gel blasters'.[1]  Further, it was accepted below, and in this Court, that the gel blasters were 'prohibited weapons' within the Weapons Act and Weapons Regulations 1999 (WA).

    [1] Trial Judgment 10 March 2023, ts 3.

  4. Regulation 4 provided:

    An article described in the third column of Schedule 1 is prescribed to be a prohibited weapon.

  5. The definition of a gel blaster provided in Item 11B of Sch 1 to the Weapons Regulations was:[2]

    An article that is made or modified to be used to discharge a hydrated superabsorbent polymer ball or other similar gel‑like missile and includes the ball or missile.

    [2] Trial Judgment 10 March 2023, ts 3.

  6. The Weapons Regulations were purportedly made pursuant to s 20 of the Weapons Act which provided:

    The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.

  7. It was not contended below or in this Court that any of the exemptions in s 6(2) or (3) or s 10 of the Weapons Act was applicable.

  8. The learned Magistrate delivered reasons for acquitting the respondent on 10 March 2023.

  9. The learned Magistrate defined the issue for his determination as being:

    … whether a gel blaster, such as it is, is a proper exercise of the regulation making power in the Weapons Act.  This case is not about an assessment of the merits of the policy decision or a political consideration about regulation or prohibition of these items …

    It involves a review of the legality of the particular means of implementing that policy, as I say particularly in this case, whether that prohibition is authorised by the Weapons Act.[3]

    [3] Trial Judgment 10 March 2023, ts 9.

  10. The learned Magistrate then expressed his decision as follows:

    … It's a question about whether the particular prohibition comes within the meaning of the words in the statute which enable the regulations and within the scope and purpose of the legislation.

    And, in my view, when one has regard to the dictionary definitions of the word 'weapon' and then the types of items or articles that were described by the Attorney‑General in the second reading speech, and, indeed, the other items and articles that are specified in the schedule to the Weapons Act, being things such as knives, martial arts implements, nunchuckas, that they are all items which have as their purpose the infliction of injury in fighting or combat.

    And that the evidence in this case does not establish the gel blaster is something that was manufactured for that same purpose and so cannot be properly described as a weapon and, accordingly, in my view, the prescription of a gel blaster is outside the scope and purpose of the Weapons Act and I, therefore, find Mr Clark not guilty.[4]

    [4] Trial Judgment 10 March 2023, ts 12.

  11. Following his acquittal, the learned Magistrate awarded the respondent costs of $12,508.

Ground of Appeal

  1. The appellant's ground of appeal is that:

    The Magistrate erred in law in acquitting the respondent on the basis that the prescription of a gel blaster as a 'prohibited weapon' under the Weapons Regulations 1999 was invalid because it was outside the scope and purpose of the Weapons Act 1999.[5]

    [5] Appeal Notice, lodged 6 April 2023.

  2. As may be seen, the appellant raises a 'pure' question of law and more particularly a question of statutory construction.

  3. In those circumstances, there is only one true construction of the relevant Regulations and Act and so it is for this Court to determine for itself the proper construction of the statute.[6]  So, for example, while the respondent relied in this Court on a 'finding' below that a gel blaster was not a 'weapon' within the common law or ordinary sense, that reasoning would not have to be accepted in this Court.

    [6] Electricity Generation & Retail Corporation t/as Synergy v EIT Kwinana Partner Pty Ltd [2022] WASCA 3 [229]; Laufer v Gear [2021] WASCA 2 [20].

  4. Although discussing the interpretation of a contract, the following observations of Allsop P (as he then was) in OneSteel Manufacturing Pty Ltd v Bluescope Steel (AIS) Pty Ltd (2013) 85 NSWLR 1 [61] are pertinent, analogously:

    That there is one true meaning does not detract from the pervasive reality that a contract will often have potentially more than one meaning, that words are inherently contextual in their meaning and that reasonable minds often differ about what is their true meaning …  Further, structure of the text and the relative weight and influence of context and purpose can strike people differently.  That is why the process of construction is not a process necessarily concluded by logical reasoning or a priori analysis.  It involves the weighting of different considerations partly logical and partly intuitive (though rational) leading to a choice.  Analysis of competing arguments assists in that process, but the 'correct' answer is not arrived at merely by seeing which side has the greater number of 'good' points …  In the context of litigation over the meaning of words, the true meaning is the choice made from the competing potential meanings by the last court that has authority on the matter.  (citations omitted)

  5. Respectfully, I have reached a different conclusion from that of the learned Magistrate.  However, the view the learned Magistrate reached was 'available and arguable' and certainly not 'unsustainable'.[7]

    [7] To adopt the language of Allsop P in OneSteel Manufacturing Pty Ltd v Bluescope Steel (AIS) Pty Ltd [62].

Relevant provisions for this Appeal

  1. The learned Magistrate's decision to acquit the respondent was a 'decision' within s 6(e) of the Criminal Appeals Act 2004 (WA).

  2. The appellant seeks leave to appeal pursuant to s 7(1) and s (8)(1)(a)(i) of the Criminal Appeals Act.

  3. By s 9(1) of the Criminal Appeals Act, the appellant requires leave. By s 9(2) of the Criminal Appeals Act, leave must not be granted on a ground unless this Court it satisfied that it has a reasonable prospect of succeeding.[8]

    [8] Samuels v State of Western Australia (2005) 30 WAR 473 [56].

  4. The respondent did not oppose leave being granted, but contends that the appeal should be dismissed.

The Weapons Act

  1. The preamble[9] to the Weapons Act was:

    An act to prohibit the bringing or sending into the State, carriage, possession, purchase, sale, supply and manufacture of certain weapons, to control the carriage and possession of other weapons, to amend:

    ●the Firearms Act 1973; and

    ●the Police Act 1892,

    and for related purposes.

    [9] By s 31(1) of the Interpretation Act 1984 (WA) 'The preamble to a written law forms part of the written law and shall be construed as a part thereof intended to assist in explaining its purport and object'.

  2. Section 3 of the Weapons Act defined 'weapon' to mean:

    a prohibited weapon, a controlled weapon or an article to which section 8 applied.

  3. By s 3 of the Weapons Act, a 'prohibited weapon' was defined to mean:

    an article prescribed by regulations to be a prohibited weapon.

  4. Section 20 of the Weapons Act provided:

    The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act. 

General Principles of Statutory Interpretation

  1. The general principles of statutory interpretation are well‑established.[10]  The principles were summarised by this Court in Mohammadi v Bethune [2018] WASCA 98 [31] ‑ [36] (Martin CJ, Mazza and Beech JJA) and do not need to be re‑stated in full here.

    [10] See e.g. Waite v Hennah [2021] WASCA 69; (2021) 96 MVR 58 [84] (Mazza, Beech & Vaughan JJA); and Lowe Pty Ltd v Belgravia Nominees Pty Ltd [2020] WASCA 180 [174] (Quinlan CJ, Mitchell & Beech JJA).

  2. There are two principles, however, which are particularly relevant, in my view, to the resolution of this matter.  The first is the emphasis placed on context: Mohammadi v Bethune [31]. The Court of Appeal cited the judgment of Keifel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration [2017] HCA 34; (2017) 91 ALJR 936 [14]:

    Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense.  This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction.  Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.  (emphasis added)

  3. The second concerns the structure of the subject legislation: Mohammadi v Bethune [33]:

    The objective discernment of the statutory purpose is integral to contextual construction.  The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials.  The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions.  (my emphasis added)

The respondent's contentions

  1. In essence, the respondent contended:

    (1)the Weapons Act is concerned with or directed to 'weapons' within that word's common law or ordinary meaning;

    (2)the regulation making power in the Weapons Act could only extend to 'weapons' in the common law or ordinary sense;

    (3)a 'prohibited weapon' could only be a weapon in the common law or ordinary sense;

    (4)gel blasters are not 'weapons' within a common law or ordinary sense; and

    (5)accordingly, the Weapons Regulations were beyond power if they prescribed gel blasters as they were not 'weapons'.

  2. The respondent's argument was that the Weapons Regulations prescribing gel blasters dealt with a subject outside the scope of the empowering provision.  This is sometimes referred to as simple ultra vires.[11]

    [11] Interpretation (2nd ed) Herzfeld and Prince [1350]; Delegated Legislation in Australia (5th ed) Pearce and Argument [12.13]. 

  3. Hence, the respondent submitted:

    [20]The prescription of something that is not a weapon as a 'prohibited weapon' would create a legislative fiction, so that 'prohibited weapon' is merely a legislative label devoid of content.  To the same effect 'prohibited weapon' could be replaced with 'Class A Article' or 'MacGuffin'.[12]

    [21]On the [appellant's] proposed construction of the Act, there would be no constraint on the scope of articles that might be prescribed as a 'prohibited weapon': a pillow, a pen, walking cane, flashlight, or toys such as a cricket bat, foam sword or Nerf gun can be 'prohibited weapons'.[13]

    [12] Counsel for the respondent told me that a 'MacGuffin' was a reference to Hitchcock movies: Appeal Transcript, page 4.  The concept certainly appears to have been popularised and mastered by Alfred Hitchcock but the word may denote, more generally, a plot device which is an object or objective that motivates the characters in, especially, espionage, mystery or suspense stories:  - 101. 

    [13] Respondent's Outline of Submissions 4 September 2023.

Consideration

  1. As to simple ultra vires, Rich J in Footscray Corporation v Maize Products Pty Ltd (1943) 67 CLR 301, 308 said:

    Authorities are of little use in determining the validity of a particular by-law.  The appropriate steps are to construe the statute under which the by‑law is made and then interpret it to ascertain whether it is within the ambit of the statute. 

  2. To similar effect the Full Federal Court in Australian Maritime Officers' Union v Assistant Minister for Immigration and Border Protection (2015) 230 FCR 523 [75] stated:

    … The validity of any other determination purportedly made under s 9A(6) will necessarily fall to be determined having regard to all the relevant circumstances and will be guided by the general principle that the power is limited by the subject matter, scope and purpose of the relevant legislative provisions. 

  3. In my view, the case turns on a constructional choice.  That is, whether the Weapons Act is principally directed to weapons in the ordinary or common law sense such that, relevantly, a prohibited weapon can only be prescribed as such if it is a 'weapon' in the ordinary sense and it is prescribed by the Weapons Regulations

  4. It is, with respect to the authorities, difficult to discern the answer to the constructional choice by the subject matter of the Weapons Act.  That seems, in this case, to be a circular exercise.  That is, one would have to answer the constructional choice to describe the subject matter where the latter is meant to inform the answer to the former.

  5. In answering that first constructional choice, I have found it more useful to consider the structure or plan which the Legislature has apparently adopted.  That informs then its scope or purpose in making the Weapons Act.

  6. The relevance of the legislature's plan may be seen from Shanahan v Scott (1957) 96 CLR 245, 250 (Dixon CJ, Williams Webb Fullagar JJ) as to what may be 'necessary or convenient' or 'necessary or expedient' in a regulation making power:[14]

    … such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary.  It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will couple what is incidental to the execution of its specific provisions.  But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.  (emphasis added)

    [14] The first expression is found in s 20 of the Weapons Act.

  7. Further, the High Court in Morton v Union SS Co of New Zealand Ltd (1951) 83 CLR 402, 410 (per the Court) said:

    The ambit of the Power must be ascertained by character of the statute and the nature of the provisions it contains.  An important consideration is the degree to which the Legislature has disclosed an intention of dealing with the subject with which the statute is concerned. 

    In an Act of Parliament which lays down only the main outlines of policy and indicates an intention of leaving it to the Governor‑General to work out that policy by specific regulation, a power to make regulations may have a wide ambit.  Its ambit may be very different in an Act of Parliament which deals specifically and in detail with the subject matter to which the statute is addressed.  (emphasis added)

  8. In my view, the structure, plan or scheme which the Legislature adopted in the case of the Weapons Act is to criminalise:

    1.the movement into the State;

    2.the possession;

    3.the sale and supply; and

    4.manufacture;

    of certain articles which are dealt with under defined terms such as 'prohibited weapon' and 'controlled weapon'.

  9. But the scheme of the Weapons Act is not to define such articles in its own text but to leave that to the Governor to do by regulations.  That is, one may discern, at the least, an intention for the Weapons Act to set out the broad offences and enforcement provisions under its pt 2 and pt 3 respectively, but to then deal with what articles are caught under the broad defined terms by regulations.

  10. It seems to me that if one takes that to be the plan the Legislature has adopted to attain its ends (to use the language quoted from Shanahan v Scott above) then it would appear necessary or convenient for 'prohibited weapons' to be prescribed or defined by the Weapons Regulations so as to give effect to the scope or purposes of the Weapons Act

  11. To adopt the language used in Morton v Union SS Co of New Zealand Ltd quoted above, in my view, the Weapons Act has laid down only the main outlines of the policy and has indicated an intention of leaving it to the Governor to work out that policy by specific regulation; hence s 20 of the Weapons Act should be taken to have a wide ambit. 

  12. Similarly, if one considers what is 'required or permitted by this Act to be prescribed' and the legislative plan I have identified is correct, then one might readily see that the Weapons Regulations in their form are required or permitted to achieve the purpose of the Weapons Act

  13. I do not think, with respect, it is correct to start with the anterior notion that the Weapons Act is directed to 'weapon' as defined by the common law or some ordinary meaning of the word.  I do not discern an intention of the Legislature to do so.

  14. I think it is safer to read 'weapon' by its statutory definition as quoted above.  That is, on an ordinary reading, anything which is prescribed to be a 'prohibited weapon' by the Weapons Regulations is, definitionally, a 'weapon'.

  15. It was not contended below or in this Court that it was somehow beyond the power of the Legislature to regulate gel blasters.  That has been done, on its face, by a combination of a very broad statutory definition of 'weapon' to include a 'prohibited weapon' and the WeaponsRegulations which have clearly included gel blasters within 'prohibited weapon'.

Extrinsic materials

  1. Both in his written outline and at the hearing of this appeal, the respondent sought to make much of the relevant extrinsic materials to support his construction. 

  2. As may be seen above, I have construed s 20 of the Weapons Act without seeking to support that construction from the extrinsic materials.

  3. Section 19 of the Interpretation Act 1984 (WA) allows for the consideration of extrinsic material if it is 'capable of assisting in the ascertainment of the meaning of the provision': s 19(1).  The Second Reading Speech is included within the material which may be considered by s 19(2)(f) of the Interpretation Act.  Further, the Parliamentary Report I refer to below would be within s 19(2)(c) of the Interpretation Act.

Second Reading Speech

  1. In the Second Reading Speech, the Hon Minister said the Weapons Bill 1998 'makes provisions to control the use and availability of replica firearms and non-firearm weapons in the community'.[15]

    [15] Weapons Bill 1998 (WA) Second Reading Speech, Legislative Assembly 22 April 1999, page 7604, Mr Prince.

  2. The Hon Minister said (after referring to previous provisions which had been 'found wanting in recent times'):

    … knives and other offensive weapons being used in robberies and assaults, and of gangs fighting in our streets with nunchakus, knives, machetes, baseball bats, pickets and so forth. 

    The lack of specific powers in relation to these weapons has made it difficult for police to contain these offences …

    This Bill, in addition to combining into one piece of legislation the powers that police need to protect our community, incorporates controls relating to replica firearms and non-firearm weapons …

    In drafting this Bill, the legislation of other States was evaluated.  It became apparent from this process that other States had also experienced similar problems with non-firearm weapons as had been experienced in Western Australia and, in many cases, were in the process of providing police with powers to deal with these weapons. 

  3. The respondent placed particular significance on the following part of the Second Reading Speech, where the Hon Minister said that prohibited weapons were weapons that 'have no other purpose than to cause injury and include most of the non-firearm weapons of the type defined in Schedule 2 of the Customs (Prohibited Imports) Regulations 1956 (Cth)'.

  4. The respondent argued, in effect, that the Hon Minister was clearly communicating that the intent of 'prohibited weapons' in the Bill was limited to articles which would fall within the common law or common usage of a 'weapon'.

  5. I am not sure that is clearly so.

  6. In any event, the Hon Minister said:

    In view of the nature of the legislation and its reliance on what is detailed in regulations, I will take the unusual step of seeking to table a draft of the weapons regulations.  Although this may not be the final draft, it will give members a clear indication of the nature of the weapons to be covered by this legislation.[16]

    [16] Weapons Bill 1998 (WA) Second Reading Speech, Legislative Assembly 22 April 1999, page 7606. 

  7. Schedule 1 of the draft regulations so tabled listed out different and somewhat disparate articles: 'gel blasters' were not included in the draft Weapons Regulations.[17]

Parliamentary Report on the Weapons Bill

[17] 'Gel Blasters' were inserted as a 'prohibited weapon' in the Weapons Amendment Regulations 2021 (SL 2021/120).

  1. The Standing Committee on Legislation prepared a 'Report in Relation to the Weapons Bill 1998'.

  2. The Report's Executive Summary said:

    The Bill defines a 'prohibited weapon' and one type of 'controlled weapon' to be whatever the regulations prescribe.  The argument for this approach is that first, it is appropriate for the articles to be listed in regulations as listing them in a smaller schedule to the Act would be to cumbersome, and secondly that defining in detail what articles can be prescribed would make the regulations vulnerable to challenge on the ground that they are beyond power.  It is appropriate that prohibited and controlled weapons should be prescribed by regulation.  However, it is reasonable to set some parameters indicating what can be prescribed.[18]  (emphasis added)

    [18] Report of the Standing Committee on legislation in relation to the Weapons Bill 1998, pages 1 - 2.

  3. The Report stated, in its body, that (after setting out the definition of 'prohibited weapon' as it appeared in the Bill and now in the Act):

    The Bill does not restrict in any way what type of article may be prescribed by regulations to be a prohibited weapon, meaning that the Government can prescribe any article it sees fit to be a prohibited weapon.[19]  (emphasis added)

    [19] Report of the Standing Committee on Legislation in Relation to the Weapons Bill 1998,  page 11; see also to similar effect the first bullet point on page 10.

  4. Further, the Report at [5.2] said:

    The Bill places no restriction on what may be prescribed by regulations as a prohibited weapon.  What articles are prohibited weapons will therefore be determined by the Governor on the advice of the Government of the day …

    The issue for the Committee's consideration is whether it is appropriate for the Bill to give unrestricted power to determine what is a 'prohibited weapon' to the Executive.[20]

    The Report then canvassed the arguments for and against defining 'prohibited weapon' in greater detail.

    [20] Report of the Standing Committee on legislation in relation to the Weapons Bill 1998, page 12.

  5. Notwithstanding the above quoted sections, there are, it may be accepted as the respondent submitted, places in the Report where reference was made to 'weapons' in passages which could be read consistently with the respondent's submissions.  So, for example, at [4.2] the Report stated:

    A notable feature of the arrangement of the Bill is that it is self‑contained … [it] stands alone as the law covering all aspects of carrying or possessing weapons (other than firearms), including weapons, offences, related offences involving other articles, searching of suspects, seizure and forfeiture of weapons.[21]

    [21] Report of the Standing Committee on legislation in relation to the Weapons Bill 1998, page 9.

  6. The Report considered it was important that there be some certainty in the community as to what is a prohibited weapon and that this is 'best achieved by setting out in the Act and/or its Regulations a definitive list of prohibited weapons'.[22]

    [22] Report of the Standing Committee on legislation in relation to the Weapons Bill 1998, page 15.

  7. The Report also recommended that the definition of 'prohibited weapon' in the Bill should include an indication as to the general characteristics of a prohibited weapon.

  8. Notwithstanding that recommendation, which it may be thought only makes sense if the Report considered that the Bill did not already include an indication as to the general characteristics of a 'prohibited weapon' (cf: the respondent's submissions), the definition remained unchanged from the Bill to the Act.

  9. If I had recourse under s 19(1) and s 19(2)(c) or (f) of the Interpretation Act to the above extrinsic materials, they would, in my view, confirm, on balance, the interpretation I had otherwise reached.

  10. That is, in short, because of the draft regulations tabled by the Hon Minister at the conclusion of the Second Reading Speech and, the clear recognition, in my view, by the Report that the content of the meaning of a 'prohibited weapon' had been left by the Bill to the Executive.

Disposition

  1. I would grant the appellant leave to appeal (which was not opposed, as noted).

  2. Under ss 14(1)(b) and (c) of the Criminal Appeals Act, I would allow the appeal and set aside the acquittal.

  3. Under ss 14(1)(c) and (h) of the Criminal Appeals Act, I would set aside the costs Order made below in favour of the respondent.

  4. Under s 14(1)(d) of the Criminal Appeals Act, I would record a conviction for an offence against s 6(1)(b) of the Weapons Act of possessing a prohibited weapon not being a person exempted under ss 6(2) and (3) or s 10 of the Weapons Act.

  5. I have given consideration to sentencing the respondent. The respondent had been charged and sentenced for three firearm offences on the same Prosecution Notice by the learned Magistrate on 18 August 2022. In these circumstances, pursuant to s 14(1)(e) of the Criminal Appeals Act, I would order the matter be sent back to the Magistrates Court and dealt with by the same Magistrate for sentencing.

  6. I will hear the parties as to the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JR

Associate to Hon Justice Howard

27 SEPTEMBER 2023


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Laufer v Gear [2021] WASCA 2